Gauhati High Court
Union Of India vs M/S Kavita Salt Suppliers on 6 June, 2024
Page No.# 1/16
GAHC010191832013
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MFA/4/2013
UNION OF INDIA
REPRESENTED BY THE GENERAL MANAGER, N.F. RAILWAY, MALIGAON,
GUWAHATI, DIST. KAMRUP, ASSAM.
VERSUS
M/S KAVITA SALT SUPPLIERS
SHREE SADAN, PLOT NO. 207 ,WARD NO. 12-B, P.S. ROAD,
P.O.GANDHIDHA, GUJRAT KUTCH
Advocate for the Petitioner : MS.U CHAKRABORTY
Advocate for the Respondent : MR.K P MAHESWARI
Date of hearing :19.03.2024
Date of Judgment : 06.06.2024
BEFORE
HONOURABLE MR. JUSTICE BUDI HABUNG
JUDGMENT
Date : 06-06-2024 Heard Ms. M. Chaterjee, learned counsel for the appellant. Also heard Ms. M. Sharma, learned counsel for the respondent.
Page No.# 2/16
2. This appeal is directed against the impugned judgment and order dated 28.08.2012 passed by the learned Railway Claims Tribunal, Guwahati Bench, Guwahati (hereinafter "the ld RCT in short) in OA-98/2004 (old) OA- III/GHY/2004/098 (New) by which the Ld. RCT directed the appellant to make payment of Rs.30,544/ as per weighment chart & money receipt dated 30.12.2002 with simple interest @6% from the date of filling of the case till the date of order. The respondents are directed to pay the amount within 90 days failing which the applicant shall be entitled to interest @ of 9% from the date of order till the date of actual payment.
3. The brief fact of the case leading to the filing of this appeal is that a train load consignment of 28804 of 75 Kg. each and 3519 Pkts. of 50Kg.each of I/salt was booked from GIMB to DMR under Invoice No.03 to 06, RR Nos 187519 to 187522, all dated 29.12.2002.The Railway collected Rs.30544/- vide MR No.306926 dated 21.01.2003 at destination as under-charges on allegation of over-loading.
4. The respondent/claimant then filed an application U/S 16 of the Railway Claims Tribunal Act,1987 before the RCT being OA-98/2004 (Old) OA- III/GHY/2004/098 (New) for refund of the punitive charges, the detention charges and the haulage/handling charges collected by the Railway amounting to Rs.30,554/- for overweight of consignment detected enroute at Viramgram weight Bridge.
5. The contention of the applicant before the learned RCT was that the actual weight booked was 23416 Qtls and they paid freight on the same weight at booking point. No over-weight was found at destination and railway issued delivery certificate of full rake of 40 wagons vide certificate No.153 to 156 dated Page No.# 3/16 15.03.03 and for which the refundable amount comes to Rs.30544/- and the applicant hold the Railways fully liable to refund the said amounts with full cost and interest.
6. The case was contested by the respondent by filling written objection.
7. Based on the pleadings of the parties, the learned Tribunal framed the following issues:
(i) Whether the applicant has served notice U/s 106 of the Railways Act,1989 in time?
(ii) Whether the applicant holds legal title for the claim?
(iii) Whether the respondent is justified to levy punitive charges on account of over-loading?
(iv) Relief & Order?
8. Both parties filed certain documents in their own favours. Upon consideration of the contention of the parties, the learned Tribunal by a judgment dated 28.08.2012 has decided issue No.1, 2 & 3 in favour of the claimant/respondent herein. The respondent N.F.Railway/ petitioner herein has been directed to make payment of Rs.30,544/- only to the petitioner/respondent herein with interest @ of 6% per annum from the date of filling of the case till the date of the said order. The respondent is directed to pay within 90 days failing which the applicant shall be entitled to interest @9% p.a. from the date of the said order till the date of actual payment. The respondent is further directed to pay the proportionate costs (application fee) of Rs.2868 and Legal practitioner's Fee of Rs.1650/-.
9. It is the said judgment and order dated 28.08.2012 that the appellant is aggrieved and is assailed in this appeal with a prayer for setting aside and Page No.# 4/16 quashing the same.
10. However, at the very outset, the learned counsel for the appellant has made it clear and submitted that the appellanth as no dispute as regards to the decision on issue nos. 1 and 2 of the impugned judgment. The appellant is concerned only with the issue no. 3, i.e., whether the respondent is justified to levy punitive charge on account of overloading.
11. The appellant assailed the decision on the issue No.3 amongst other on the following grounds:
(i) That the Ld RCT failed to appreciate the contentions of the appellant that the Respondent/applicant did not make any request to the Railway administration for re-weighment of the consignment as provided u/s 79 of the Railway Act, 1989 at the time of making payment of the said penal charge/punitive Charge as well as taking delivery of the consignment at destination station.
(ii) That the consignment was weighed at Viramgram weigh Bridge and on weighment, it was found that the consignment was over weigh and on the basis of weighment particulars of Railway weighbridge found ten (10) wagons were over-loaded and from where 99 bags were off-loaded from 6 wagon and remaining wagons were allowed to destination. Accordingly, punitive charge, detention charge and handling charge was levied from the consignor in terms of section 73 of the Railway Act, 1989.
(iii) That the said rake weighment at Viramgam, the booking station found that the said consignment was over weight and Page No.# 5/16 accordingly, said Railway charged penal freight and under charges for late payment and same was collected by the N.F Railway from the consignor as Railways are vested with power of measure, weight or re-weighment of loading or over loading before delivery under Section 73&78 of the Railway Act,1989 as well as parts-I,II & III of the situation 'A' and 'B' of the schedule of the notification dated 23.12.2005 issued by the Ministry of Railways, Railway Board and as par the 1878 of Railways Commercial Manual, Vol.II as well as under the provisions of Rule 3 of Railway's (Punitive charges for overloading of wagon) Rules, 1990 & 2007 (as amended).
12. It is submitted that the consignment was booked on 29.12.2002 at Gandhidham and the weighment was done at Viramgam weighbridge as there was no such weighbridge facilities for the purpose of weighing consignment loaded in wagons at Gandhidham. As per the weighment chart, 10 wagon excess were found in the consignment. Hence, the excess punitive charge of Rs. 30,544/- was demanded for excess. And as on the basis of weighment particulars of Railway weighbridge found ten wagons were over-loaded and from where 99 bags were off-loaded from 6 wagons and remaining 4 wagons were allowed to destination. Accordingly, punitive charge, detention charge and handling charge was levied from the consignor in terms of Section 73 of the Railway Act, 1989. As such, there was neither any fault nor any illegality in charging the penal charges and the same is not refundable.
13. That the Weighbridge verification certificate though was issued on dated 30.09.04, it was valid from 17.02.2001 up to 29.09.05 and the weighment was done on 30.12.02. But the learned RCT committed mistake by stating Page No.# 6/16 weighment verification dated 30.09.2004 was valid upto 29.09.2005 by misreading the weighbridge fitness certificate. And on the basis of misreading the ld RCT held that the said certificate had no valid.
14. That the learned RCT further incorrectly held that no document was furnished by respondent to prove that whether the weighbridge was functioning correctly or not on the day of weighment and held that under the said circumstances it cannot be established that weighbridge was fit on the day of weighment and that the excess detected was correct. And for the reason above; the ld RCT held that the respondent/appellant herein could not prove excess weight. And thus, it stood proved that the respondent/appellant herein had realized the punitive charge on incorrect basis.
15. In this regard the appellant contended that the weighment chart is an authentic document for proving the weight of the wagons along with the consignments. The gross weight, net weight as well as the Tare weight of the wagons are clearly mentioned in the weighment chart. The difference has only been calculated manually which has also been correctly calculated. The respondent could not disprove the overloading.
16. Thus, according to the appellant, the ld RCT has misconstrued the principle of Section 101 and Section 102 of the Indian Evidence Act,1872 and wrongly decided the issue No.3 against the appellant. It is submitted that the burden of proof is on the applicant/Respondent herein to prove the malfunctioning of the weighbridge on the day of weighment which was on 30.12.2002.
17. It is submitted that the Ld. RCT committed a manifest error of law by allowing the claim of the respondent/applicant in violation of provision of law;as Page No.# 7/16 such, the same requires interference by this court and prays for set aside and quashing the impugned judgment dated 28.08.2012.
18. In support of her submission the learned counsel for the appellant has placed reliance upon the judgment of this court passed in WA No.27/95- Union of India Vs. Hasija Coal Traders, reported in 1995 (3) GLT 464, (relevant para-6,8 &9) whereby the power of the authority to levy punitive charges for over loading wagons has been upheld.
19. The appellant also relied on the decision of this court in the case of Union of India-Vs.-M/s Salt Marketing Centre reported in 1995(3)GLT548. The relevant paragraphs No. 4,5,6, & 8 are reproduced bellow:
4. The real dispute in the present appeal centers around the question as to whether the appellant can levy penalty in exercise of their powers given under Section 73 read with Section 87 (2) (d) of the Indian Railway Act on the basis of re-weighment which has been done at an intermediate station, admittedly, in the absence of the consignee.
5. as far as the power of the appellant to levy punitive charges for overloading wagons, that has been upheld by this Court in W.A. No.27/95, Union of India-Vs. Hasja Coal Traders, decided on 10 th February,1985. Thus, we are also of the opinion that as per as the power of the railway to levy penalty charges in accordance with the provisions of the Railway Act and Rules framed thereunder, i.e. Railway (Punitive Charges for Overloading Wagons)Rules, 1990, is concerned, the same can be done in accordance with the Rules.
6. The other question which arises for determination is as to whether the Railway has got power to unload the goods beyond the capacity of the wagon if detected at the forwarding station or in any place before the destination station. We are of the opinion that in view of the clear provisions of proviso to Section 73 of the Railway Act, power is available to the Railway and the Railway will be within its jurisdiction to get the goods reweighted at any point mentioned in the proviso to Section 73 and for that purpose, can even unload the goods from the wagon.
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8. As stated above, as far as the power of weighment is concerned, the same is available with the Railway. However, when it comes to the question of levying penalty on the basis of reweighment which has been done in the absence of the consignor/consignee/endorsee, we are of the opinion that the penalty can be levied only after issuing show cause to the person from whom the penalty is sought to be recovered and after affording him reasonable opportunity of placing his case before the competent authority who is going to levy the penalty. The punitive measure of realizing the actual penalty can be exercised by the authority only after following the principles of natural justice and not on the basis of any evidence which may have been collected by the Railway ex-parte at the back of the consignor/consignee/endorsee.
20. With regards to the question whether the railway has got power to unload the goods loaded beyond the capacity of wagon if detected at the forwarding station or in any place/ enroute before the destination station, the learned counsel for the appellant submits that in view of the clear provisions of proviso to section 73 of the Railway Act,1989 power is available to Railway to recover punitive charge. Railway may in its discretion unload the excess load and recover the cost of unloading, the charges for detention of the wagon from the consignor, consignee or endorsee as the case may be. However, what is important is that no exercise of discretion can be arbitrary. Hence, the discretion to unload given to the Railways by the proviso to Section 73 also cannot be arbitrarily exercised. Hence, the Railways will be well within its jurisdiction to get the good reweight at any point mention in the proviso to section 73 of the Railways Act and for that purpose unload the goods from wagon.
21. To support her case the appellant relied on the decision of this Court passed in the case of Union of India &Ors Vs. Durmesh Coal &Ors, reported in 2007 (4) GLT 139.
5. In view of the fact that the provisions of Sections 72 & 73 of the Railways Act form the entire subject of controversy of the writ petitions Page No.# 9/16 aforementioned, we reproduce herein below Sections 72& 73 of the Railways Act, 1989.
72. Maximum carrying capacity for wagons and trucks-
(1) The gross weight of every wagon or truck bearing on the axles when the wagon or truck is loaded to its maximum carrying capacity shall not exceed such limit as may be fixed by the Central Government for the class of axle under the wagon or truck.
(2) Subject to the limit fixed under Sub-section (1), every railway administration shall determine the normal carrying capacity for every wagon or truck in its possession and shall exhibit in words and figures the normal carrying capacity so determined in a conspicuous manner on the outside of every such wagon or truck.
(3) Every person owning a wagon or truck which passes over a railway shall determine and exhibit the normal carrying capacity for the wagon or truck in the manner specified in Sub-section (2).
(4) Notwithstanding anything contained in Sub-section (2) or Sub-section (3), where a railway administration considers it necessary or expedient so to do in respect of any wagon or truck carrying any specified class of goods or any class of wagons or trucks such carrying capacity as may be specified in the notification and it shall not be necessary to exhibit the words and figures representing the carrying capacity so determined on the outside of such wagon or truck or such class of wagons or trucks.
73. Punitive charge for overloading a wagon - Where a person loads goods in a wagon beyond its permissible carrying capacity as exhibited under Sub- section (2) or Sub-section (3), or notified under Sub-Section (4), of Section72, a railway administration may, in addition to the freight and other charges, recover from the consignor, the consignee or the endorsee, as the case may be, charges by way of penalty at such rates, as may be prescribed, before the delivery of the goods:
Provided that it shall be lawful for the railway administration to unload the goods loaded beyond the capacity of the wagon, if detected at the forwarding station or at any place before the destination station and to recover the cost of such unloading and any charge for the detention of any wagon on this account.
6. From a careful reading of Sections 72 & 73, what transpires is that Section 72 empowers the railways to fix the maximum limit of load carrying capacity for wagons and trucks and Section 73makes punitive provisions for loading Page No.# 10/16 more than the permissible limits of weight. Section 73 makes it clear that when a person loads goods in a wagon beyond its permissible load carrying capacity, the railway administration may, in addition to the freight and other charges, recover from the consignor, the consignee or the endorsee, as the case may be, charges by way of penalty at such rates, as may be prescribed, before the delivery of the goods. The proviso to Section 73, however, gives a discretion to the railway authorities that instead of carrying the excess load to the destination and recovering the penalty, the railways may unload the excess load and recover the cost of such unloading and also the charge for detention of the wagon from the consignee or consignor or the endorsee, as the case may be.
7. A proviso, we must bear in mind, ordinarily, create an exception to a general Rule. Viewed thus, it is clear that the substantive part of Section 73 empowers the railways to, ordinarily, carry a consignment of goods to its destination and while delivering the goods at the destination, it would be entitled to recover, in addition to the freight and other charges, penalty from the consignee or consignor or the endorsee, as the case may be, for the excess load. The proviso to Section 73, however, engrafts an exception to this general Rule by laying down that though, ordinarily, the railways may carry the overloaded wagons or trucks to the destination and charge or recover, at the destination, penalty and other charges, the railways shall also have the discretion to unload the excess load, when the excess load is detected, and recover the cost of such unloading and the charge for detention of the wagon from the consignee or consignor or the endorsee, as the case may be. What is, however, important to bear in mind is that no exercise of discretion can be arbitrary. Hence, the discretion to unload, given to the railways by the proviso to Section 73, also cannot be arbitrarily exercised.
8. What emerges from the above discussion is that the railways have the power to carry excess load to its destination and recover punitive charges, as indicated hereinabove; but the railways also have the discretion to unload the excess load, at any place, and recover the cost of unloading and also the charges for detention of the wagon from the consignee, consignor or the endorsee, as the case may be. No mandamus could have, therefore, been issued against the railways forcing them, in all cases, to adjust the excess load by unloading the excess load from one wagon and carrying the excess load, by way of such adjustment, in another wagon, having rooms. Viewed from this angle, the impugned directions are contrary to, and wholly inconsistent with, the scheme of Section 73. Such directions shall, if allowed Page No.# 11/16 to survive, cause serious miscarriage of justice and make the provisions of Section 73 otiose.
22. The learned counsel for the appellant submitted that in view of the decision in the above referred case and for the reason stated above the impugned judgment and order dated 28.08.2012 in respect of issue no.3 is without any basis and evidence is arbitrary, illegal, improper and unsustainable in law and is liable to be set aside and quashed.
23. The learned counsel for the respondent/claimant on the other hand while defending the impugned judgment and referring to the affidavit filed by the respondent has submitted that the consignment was booked on 29.12.2002 from Gandhidham to Dharmanagar. However, the consignment was weighed on 30.12.2002. As such, the weighment was made in absence of the parties. And a survey was done at the time of loading at Gandhidham and a survey report was also submitted on 30.12.2002. As per the survey report a total of 32,323 bags were loaded at Gandhidham, comprising of 28804 bags of iodized salt in HDPE bags of 75 kgs and 3519 bags of iodized pisai salt in 50 kgs. These were in standard sized bags and it was in compliance of the permissible carrying capacity of the wagons. Further, the survey report dated 30.12.2002 and loading details were never been challenged by the appellant.
24. The learned counsel for the respondent further submitted that after leaving Gandhidham, the respondent/appellant herein made a weighment at Diramgram and prepared weighment chart on 30.12.2002, where it was found excess of 10 wagons consisting of 9.93 metric tons. However, in the weighment chart there is a remark stating weighment information not yet confirmed. But based on the weighment chart prepared by the Chief Goods Supervisor, Viramgram, the Chief Goods Supervisor, Diramgram had issued demand notice Page No.# 12/16 dated 18.01.2003 for punitive charge of Rs. 30,544/- before removal of the consignment from Dharmanagar goods.
25. In order to support its contention, the respondent has placed some important provision stipulated under section 17 (1), section 17 (4), section 17 (5), section 24, 25 and 26 of the Standards of weights and Measures (Enforcement) Act,1985,which provides the requirement of Fitness Certificate for proving the fact that the weighbridge is functioning properly.
26. It is submitted that in the said weighment chart under serial No. 41 BVG (Brake Ven Guard) the weight mentioned in the gross weight tons, Tare weight tons and Net Weight tons are not tallying with each other. Further, the Fitness certificate of the Railway Weighbridge, Viramgram was issued on 30.09.2004 which was valid up to 29.09.2005. This was produced before the Ld. RCT who held that it was not relevant for the present case as the weighment of the present case was done on 30.12.2002.
27. It is further contended that the railway had also delivered shortage of goods and for which the applicant/respondent had preferred a separate claim application before the Ld. RCT under application no. 97/2004 and for which they have got a relief and the Railway had paid a compromise amount of Rs.
1,39,935/- to the applicant/respondent; but on the other hand, the railway issued a demand notice for 10 wagons excess which comes to 9.93 metric tons.
28. The applicant/respondent herein on the basis of the demand made by the Railway had paid a punitive charge of Rs. 30,544/- for which the Railway had issued a money receipt no. 306926. The demand notice was issued without issuing any show cause notice which is contrary to the law laid down by the full bench of this Court in WA/333/2010 (Mega Technical and Engineer Page No.# 13/16 Private Limited Vs. Technical and Engineer Private Limited versus Union of India and Ors) decided on 10.08.2017.
29. The learned counsel for the respondent further submitted that a penalty can be imposed only if overloading is proved; and to prove overloading, the Railway must satisfy the ld. RCT that the weighment taken is correct as laid down in Nirmal Traders Vs. Union of India and Ors reported in 2003 2 GLR 429. However, in the instant case the correctness of the weighment was never proved in as much as the Fitness certificate of the Railway Weighbridge, Viramgram was issued only on 30.09.2004 which is not relevant for the present case as the weighment of the present case was done on 30.12.2002.
30. In support of her submission, the respondent has placed a reliance on the decision of this Court in the case Nirmal Traders Vs. Union of India and Ors (Supra). The relevant paragraph is reproduced herein bellow:
"33. From the above, it is also abundantly clear that the mere fact that the re- weighment has been taken at the railway weighbridge, it cannot be a reason for imposing penalty without giving an opportunity of showing cause to the person concerned. Viewed from this angle, reliance placed by Mr. Sharma on the decision in M/S Kamrup Forwarding Agency (Supa) to show that on account of the fact that the re-weighment in the present has been taken at Laskar weighbridge, which is a railway weighbridge, the weight found therein is binding on the parties is not entirely correct in as much as the decision in M/S Kamrup Forwarding Agency does not categorically lay down such a law. This apart, penalty can be imposed only if overloading is proved and to prove overloading, the railway must satisfy the Court that the weighment taken is correct. There is no law that the correctness of the weighment taken in the absence of the party concerned, at a railway weighbridge cannot be questioned by the person/party concerned."
31. It is submitted that in the present case the goods were weighed at Railway weighbridge i.e.at Virangram in absence of the respondent. Thereafter, the appellant-Railway had filed a Demand Notice dated 18.01.2003 to the Page No.# 14/16 Respondent at destination station, Dharmanagar for levy of punitive charges Rs.30,544/-. It is submitted that though the demand notice was issued to the respondent but the same cannot be considered as Show Cause Notice. The respondent placed a reliance on the judgment passed by Full Bench of this Court decided in the case WA No.333/2010 in case of Megha Technical & Engineer (Pvt.) Ltd Vs. Union of India & Ors ., where the Hon'ble Court held that opportunity of hearing has to be given to the affected party even if there is no express provision in the status for such hearing and to rule out the penalizing of an innocent consignor, an opportunity of heating must be provided.
32. Upon consideration and having heard both the parties, the issue emerges before this Court for consideration is whether the respondent is justified to levy punitive charge on account of overloading.
33. The learned RCT while discussing with regards to issue No. 3 has observed that "...the weighment was done on 30.12.2002. Weighbridge verification certificate was issued on 30.09.2004 valid up to 29.09.2005. And, in the present case, the date of booking is 29.12.2002. Therefore, the said certificate has no effect". It is further observed that no document was furnished by the respondent to prove whether weighbridge was functioning correctly or not on the date of weighment and under the circumstances it cannot be established that weighbridge was fit on the day of consignment and the excess detected is correct.
34. In this regard the contention of the appellant is that the Weighbridge verification certificate though was issued on dated 30.09.04, it was valid from 17.02.2001 up to 29.09.05 and the weighment was done on 30.12.02 which is well within the validity period. But the learned RCT committed mistake by stating that the weighment verification dated 30.09.2004 was valid upto Page No.# 15/16 29.09.2005 by misreading the weighbridge fitness certificate. And on the basis of misreading, the ld RCT held that the said certificate had no valid.
35. On perusal of record, the document i.e., the Weighment Fit Certificate reveals that the weighment was done on 30.12.2002. And although the Weighbridge verification certificate was issued on dated 30.09.04, but the document clearly shows that it was valid from 17.02.2001 up to 29.09.05. The learned counsel for the appellant contended that the rules concerning testing of weighbridge in railways is give nunder Indian Railway Commercial manual-vol-II. Para 1431 of the manual prescribe that all weighbridges will be tested half yearly by an Inspector of Mechanical Department. The appellant has produced the periodical test certificate issued by the weight and measures department, Govt. of Gujarat. On examination of the said certificate, it was found that it was in order and in correct format and it was valid from 17.02.2001 to 29.05.2005. Further under para 1429-1436, various measures and procedures have been outlined and inspections have been prescribed by Railway to ensure that the weighbridges installed on the Railways are maintained in a proper condition. The Applicant/respondent herein had not adduced any contrary evidence to show that such procedures had not been followed and inspections had not been carried out. In absence of any evidences to prove contrary to the said weighbridge fitness certificate, there is no reason to disbelieve or doubt the proper working of the weighbridge. Thus, the weighment was fit and the certificate issued covers the relevant period. In view of the above, the respondent failed to prove that it has been over charged by the appellant and therefore, the respondent is not entitled for refund.
36. It is not disputed that the railway is empowered to penalize consignors when excess load is detected, through re-weighment at the loaded railway Page No.# 16/16 wagons. In the instant case a demand notice was issued to the respondent. Accordingly, the respondent paid the punitive fine. There was no protest. Admittedly, no request was also made for re-weighment. So, there was no occasion to issue notice since they have already paid. And as seen, the weighment was fit and certificate issued which covers the relevant period and the fine was charged as per the section 73 of the Act. So, there was no infirmity in the charging of fine.
37. Taking into account of the decisions in the above referred cases in Union of India Vs. Hasija Coal Traders, (supra), Union of India-Vs.-M/s Salt Marketing Centre (supra) and Union of India & Ors Vs. Durmesh Coal &Ors and the clear provision under section 72 and 73 of the Act; and for the reason what have been discussed above, the appeal succeed. As a result, the impugned judgment and order dated 28.08.2012 passed by the learned Railway Claims Tribunal, Guwahati Bench, Guwahati in OA-98/2004 (old) OA- III/GHY/2004/098 is hereby set aside.
38. The appeal stands allowed and disposed of in terms of the above observations. No order as to costs.
JUDGE Comparing Assistant